SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
RAYMOND BERKELEY
PLAINTIFF, Civil No SK 2020 CV 121
V ACTION FOR ACCOUNTING
SPECIFIC PERFORMANCE
AS TRLSTEF OF THE TRUST AGREEMENT CONVERSION BAD FAITH and
CF BARBARA T BERKELEY DECLARATION JUDGMENT
DEFENDANT CITE AS 2021 VISUPER 2g?
Appearances
Andrew L Capdeville, Esq
Law Offices of Andrew L Capdeville P C
St Thomas US Virgin Islands
For Plamttfi‘s
Yohana M Manning, Esq
McChain Hamm & St Jean LLP
St Croix U S Virgin Islands
For Defendant
MEMORANDUM OPINION
WILLOCKS Presiding Judge
(11 1 THIS MATTER came before the Court on Plaintiff Raymond Berkeley 9 (hereinafter
Plaintiff ) motion to compel Defendant Michele Berkeley individually and as Trustee of The
Trust Agreement of Barbara T Berkeley (hereinafter Defendant ) to respond to Plaintiff s
discovery requests and abide by the scheduling order filed on January 5 202i To date Defendant
has not filed an opposition thereto
BACKGROUND
‘11 2 On February 6 2020 Plaintiff filed a complaint against Defendant in connection with
Barbara T Berkeley s trust established by The Trust Agreement of Barbara T Berkeley dated
December 2 1997 Plaintiff‘s complaint alleged the following causes of action Count I Specific
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Performance Count II Breach of Fiduciary Duty Count III Unjust Enrichment Count IV Bad
Faith and Unfair Dealings Count V Conversion and Count VI Declaratory J udgment On May 5
2020 Defendant filed an answer On September 8 2020 the parties submitted a joint proposed
discovery and scheduling plan which the Court approved and entered on September 28 2020
(hereinaftei Scheduling Order ) According to the Scheduling Order [21]“ initial disclosures
pursuant to V I R Civ P 26(a) shall be served on all parties not later than October 1, 2020 and
[21]“ written interrogatories requests for production of documents and requests for admissions
shall be completed not later than December 16, 2020 (Scheduling Order) (emphasis in original)
‘II 3 On October 2 2020 Plaintiff filed a notice of service of Plaintiff’s initial disclosures
pursuant to Rule 26(a)( l )(A) of the Virgin Islands Rules of Civil Procedure On October 30 2020
Plaintiff filed a notice of service advising the Court that the following documents were served on
Defendant via her COUDSCI Yohana M Manning Esq on October 30 2020 Plaintiff s first set of
intetrogatories t0 Defendant Plaintiff 9 first requests for admissions to Defendant and Plaintiff 9
first request for production of documents to Defendant On January 5 202l Plaintiff filed this
instant motion Plaintiff’s motion included the following certification I hereby certify that
undersigned Counsel has in good faith conferred or attempted to confer with Defendant s Counsel
to make disclosure or discovery in an effort to obtain it without court action
STANDARD OF REVIEW
<][ 4 Motions related to discovery pursuant to Rules 26 through 37 of the Virgin Islands Rules
of Civil Procedure are governed by Rules 37 and 37 l of the Virgin Islands Rules of Civil
Procedure (hereinafter Rule 37 and Rule 37 1 respectively) Rule 37 and Rule 37 I mandates
that the moving party submlt a certification with its motion certifying that both parties engaged in
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substantive good faith negotiations before filing a discovery motion V I R CIV P 37(a) and
37 1(a) '
‘I[ 5 Rule 37 permits a party seeking discovery to move for an order compelling disclosure
answer designation production inspection and for appropriate sanctions See V I R Cw P 37
If the motion is granted or if the disclosure or requested discovety is provided after the motion
was filed the court must after giving an opportunity to be heard require the party or deponent
whose conduct necessitated the motion the party or attorney advising that conduct or both to pay
the movant 5 reasonable expenses ineurted in making the motion including attorney 3 fees But the
court must not order this payment if (i) the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without coun action (ii) the opposing party 5
nondisclosure response or objection was substantially justified or (iii) other circumstances make
an award of expenses unjust V I R CIV P 37(a)(5)(A) On the other hand [Hf the motion is
denied the court may issue any protective order authorized under Rule 26(c) and must after giving
an opportunity to be heard require the movant the attorney filing the motion or both to pay the
party or deponent who opposed the motion its reasonable expenses incurred in opposing the
' Rule 17 proyides
(a) Motion for an Order Compelling Disclosure or Discoury
{1) In Geneml On notite to other parties and all affected persons a party may mow tor an order
compelling diselosun. 0r discovery The motion must include a certification that the mmant has in good
faith conferred or attempted to Lonter with the person or party tailing to make diselosure or disco» cry in
an effort to obtain it without mun action
VI R Cw P ”47(a)
Rule 17 I provides
(a) Good Faith Negotiation Requirement
Prior to filing any motion relating to discovery pursuant to Rules 26 through 37 other than a motion relating
to depositions under Rule '50 counsel tor the patties and any 5e“ represented parties shall confer in a good
faith effort to eliminate the neceseity tor the motion or to eliminate as many of the disputes as possible
VI R CW P 171w)
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motion including attorneys fees [b]ut the court must not order this payment if the motion was
substantially justified or other circumstances make an award of expenses unjust V I R CIV P
37(a)(5)(B) And [i]f the motion is granted in part and denied in part the court may issue any
protective order authorized under Rule 26(c) and may after giving an opportunity to be heard
apportion the reasonable expenses for the motion VI R CIV P 37(a)(5)(B) The imposition of
sanctions for abuse of discovery under Rule 37 is a matter within the discretion of the trial court 7
Dans l Varlack Ventures Inc 59 V I 229, 236 (V I 2013), see also Pedro v Ranger Am offhe
VI Inc 7OVI 251 294 (Super Ct 2019) see also Mollm t [ndependenceBlue Cross 56 VI
155 168 (V I 2012) (noting the trial court 5 broad discretion to control discovery)
DISCUSSION
‘l[ 6 In his motion Plaintiff requested the Court to enter an order compeIling Defendant to
respect the previously submitted Discovery Plan and tender her outstanding discovery
responses (Motion p 5) Plaintiff made the following assertions in support of his request (i)
The parties respective counsels have corresponded and conferred regarding the outstanding
discovery without resolution of the impasse (Id at p 2)‘ (ii) Defendant never sewed any
discovery requests on Plaintiff and according to the scheduling order is precluded from
propounding written discovery (Id) (iii) [T]he parties have conferred regarding Plaintiff” s
outstanding discovery requests Plaintiff granted Defendant an extension on November 23 2020
and again a1beit reluctantly on December 10 2020 I (Id atp 3) (iv) Two years have passed
I The Dans court was addressing Rule 37 01 Federal Rules of Civil Prmedure (hereinafter Federak Rule 37 ) Rule
37 was modeled after Federal Rule 37 Thus the Court finds the discussion in Dam applicable in this instance
1 Plaintiff explained in his motion
Counsel for Defendant contented Plaintitt s attorney on Nmember 23 2020 to request an extension through
December 11 2020 in order to auommodate Defendant 5 serum, as a medical protessional during the
ongoing pandemic. That request was granted without objection However on December 10 2020 counsel
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since the death of the parties mothet Barbara Berkeley and yet her wishes fox the distribution of
her assets to hex children has yet to be honored (Id at p 4) (v) Defendant failed to tender her
responses as required by the Rules of Civil Procedure the Court approved Discovery Plan or the
Defendant s own proposed deadline of December 18 2020 (Id ) (vi) Defendant s actions are
contemptuous and deserve sanction by this Court (Id ) and (vii) GiVen that the Trust remains
shrouded in mystery and without adequate accounting the possibility that assets are being wasted
or absconded while Defendant tarries remains plausible (Id ) As such Plaintiff also requested
the Court to enter an order sanctioning Defendant in the amount of the feeS‘ and costs associated
with the instant Motion to Compel and any litigation thereof (Id at p 5)
fl7 The Court will note at the outset that the Court finds Plaintiff 5 good faith negotiations
certification included in his motion satisfactory and in compliant with Rule 37 and Rule 37 l
1 Plaintiff’s Motion as to Defendant’s Failure t0 Disclose
‘11 8 Rule 26 0f the Virgin Islands Rules of Civil Procedure (hereinafter Rule 26 ) requires
that {c]xcept as exempted by Rule 26(a)( l )(B) or as otherwise stipulated or ordered by the court
a party must without aw aiting a discovery request provide to the other parties certain information
and documents 4 Rule 37 governs Rule 26 violations Rule 37 provides that [ilf a party fails to
tor Defendant again requested delay promising to complete discovery in an additional two Weeks
Plainlilt s counsel did not consent to the requesl but in an attempt to accommodate Defendant requasted
that discmery be tendered within one week The undersigned rcaLhed out (0 Defendant s attorney on
December 15 2020 inquiring 0f the status Defendant promised to complete discovery by Friday Deeember
I8 2020 That deadline passed without the outstanding discovery being completed On December 22 2020
Defendant s attorney requested an unspecified amount of additional time citing Delendanl s role as a
physician and first responder
(Motion pp 2 7,)
4 Rule 26 provides
( l) Rewind D‘mlmurts
( l ) Inmu/ Dist [mun
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make a disclosure required by Rule 26(a) any other party may move to compel disclosure and for
appropriate sanctions V i R CIV P 37(a)(3)(A) Under Rule 37 the sanctions for failure to
disclose or supglement may include ‘the party not allowed to use that information 01 witness to
supply evidence on a motion at a hearing or at a triai, un§ess the failure was substantially justified
or is harmlees and {flu addition to or instead of this sanction the court on motion and after
giving an opportunity to be heard (A) may order payment of the reasonabie expenses including
attorney 5 fees caused by the failure, (B) may inform the jury of the party's failure and (C) may
impose other appropriate sanctions including any of the orders listed in Rule 37(b)(2)(A){i) (vi) ‘
(A) In (Jewry! i xLept as LXLalELd h) Ruin, ”fit I)( 1 MB) 01 As UthutAtM. stipuhmd m urtiutd h).
thL mutt a petty must without waitinu a dimmer} ILqULbl prmhh tn the 01er patties
ti) tht. name 1an it known “14., mime» and ldephnm numer u! LdLh indixidual iikely tn hate
diswumhh intmmatitm 11mg Vt ith thL huhiuts 0| that inlurm ttiun that th dimiminu putt}
may use to support its LEdifllh 0| stLlths tinth the use mould ht sold} tor imp; Munch:
{tihl mp} of til downturns clutmnimlE} 510m} inflammation and tungihit, thintas that the
disclosing party. has in its ptxssessinn eustmiy 0r wntmi and may use In summit its Litmus 0r
(tetanus tank» thy um. mtuid be sold} Eur httpLuLhmuat unless it uouEd h; undut}
buufubmm tn {JIUGULL twp} of m Run in Maid] mm mm item must hL dunk), ititlfliiiLd
along with a stathLnt d5 {0 M1) Lani} Latino! tmntiiy be wphd and imhtdinq a tiesuiption vi
the lumtinn where each can he ruiurtui
(iii) ‘1 Lumput 1mm of Lad] Latwury 0t damavn LEaimLG by tin. disdoaing pasty “it?! ah
uuppottint dmuments in the putt) s mullet pmduud as ruched Ufiitbb prixiELng 0r
protutui 1mm distimuu on “huh each Lumputation is bus“! intEuding mutual,» he 1:th (m
the mum. and aunt of infill: ins nuttued md
tine] LOP} u! an), immune; AUILeanE ptimut) m ()thLi\\i5L under which an insutanu.
busing» m t) bl. liahEe 10mm!) a1! 0; pm of (t possible judgment in [ht action 0| :0 indutmit)
0r autumn» Eur paymmts math to satisfy the iudummt ind m) Limumutb rewind hum
insuer £th mm to an) Ieset‘hfiitm 0t Iiehts 0: mm :1 0t Ltl‘.Cld“L
VI R CW P 26(a)(l){A)(i) UV)
Rule 37(b)(2)(A)ti) (Vi) provides
(i)directing that the matters embraced in the order or other designated facts be taken as estabiished tor
purposm of the adieu as the prevaiiing party claims
(ii) prohibitino the disobedient patty horn supporting or opposing designated claims or defenses or tram
introducing designated matters in evidence
(iii) striking pleadings in whole or in part
(it) stayint: turthet proceedings untiE the order is obeyed
(V) dismissing the action or proceeding in whole or in part
(Vi) rendering a detauit judgment against the disobedient party 01‘
VI R CW P 37(b3(2)(A)ti) (Vi)
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V I R CW P 37(c)(1) In discussing Rule 37 sanctions for Rule 26 Violations the Virgin Islands
Supreme Court clarified in Dam that [s}ubstantial justification for failing to disclose is satisfied
if there exists a genuine dispute concerning compliance Dams 59 V I at 236 The Virgin Islands
Supreme Court further clarified that when determining whether a violation is harmless the court
should consider a number of factors prejudice or surprise to the opposing party the ability of the
party to cure that prejudice the likelihood of disruption at trial and the bad faith or willfulness 0f
the violating party [d at 237
(ll 9 Hele Defendant violated Rule 26 when he failed to timely serve his initial disclosures
Defendant did not argue since Defendant did not file an opposition that the failure was
substantially justified or that the failure is harmless While the Court does not find the failure
substantially justified the Court finds in weighing the fact01s outlined by the Dam court the
failure harmless to wit Defendant has the ability to cure any prejudice the failure may have
caused thus far and this matter is still in the early stages so no likelihood of disruption at trial and
these factors outweigh any potential bad faith or willfulness 0f the violating party The Court is
cognizant of Viigin Islands Supreme Court 5 longstanding instruction that the preference is to
decide cases on their merits and that any doubts should be resolved in favor of this preference
Sarazm i chket 66 V I 253 265 (V I 2017) (quoting Fuller v Browne 59 V I 948 956 (V I
2013) (quoting Spencer v Nmarro 2009 V I Supreme LEXIS 25 at 9 (V I 2009)
(unpublished)) Thus at this juncture the Court wilt grant Plaintiff is motion as to Defendant s
failute to serve initial disclosures order Defendant to serve her initiaI disclosures and order
Defendant Defendant s counsel or both to pay the reasonable expenses including attorney 3 fees
caused by the failure See Pedro 70 VI at 294 (quoting Dans 59 VI at 236 (2013) (The
imposition of sanctions for abuse of discovery [procedures] under [V I R CW P ] 37 is a matter
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within the discretion of the trial court )) see also V I R CIV P 37(a)(5)(A) ( If the motion is
granted or if the disclosure or requested discovery is ptovided after the motion was filed the
court must after giving an opportunity to be heard require the party or deponent whose conduct
necessitated the motion the party or attorney advising that conduct or both to pay the movant 5
reasonable expenses incurred in making the motion, including attorney 5 fees ) In support of its
order of payment of reasonable expenses the Court finds that (i) Plaintiff filed the motion after
attempting in good faith to obtain the disclosune or discovery without court action (ii) Defendant s
nondisclosure response or objection was not substantially justified and (iii) no other
circumstances make an award of expenses unjust See V I R CIV P 37(a)(5)(A)
2 Plaintiff’s Motion as to Defendant’s Failure to Respond to Interrogatories and
Requests for Production
‘ll 10 Rule 33 of the Vilgin Islands Rules~ of Civil Procedure (hereinaftet Rule 33 ) permits a
party to setve on any other party written interrogatories V I R CIV P 33(a) and requires that
[eldch intelrogatory must to the extent it is not objected to be answered separately and fully in
writing under oath V I R CIV P 33(b)(3) Rule 34 of the Virgin Islands Rules of Civil Procedure
(hereinafter Rule 34 ) permits a party to serve on any other party requests for production of
documents or tangible things to inspect and requests for entry V I R CIV P 34(a) and requires
that [f]0r each item or category the response must either state that inspection and related activities
will be permitted as requested or state with specificity the grounds for objecting to the request
including the reasons and the responding party may state that it will produce copies of documents
or of electronically stored information instead of permitting inspection VI R CIV P
34(b)(2)(B) Under Rule 34 [t]he production must then be completed no later than the time for
Berkelett Berkelet
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inspection specified in the requefit or another reasonable time specified in the response VI R
CIV P 34(b)(2)(B) Rule 37 governs Rule 33 and Rule 34 violations
(ll 11 Rule 37 provides that [a] party seeking discovery may move for an order compelling an
answer designation production or inspection if (iii) a party fails to answer an interrogatory
submitted under Rule 33 or (iv) a party fails to produce documents or fails to respond that
inspection will be petmitted or fails to permit inspection as requested under Rule 34 VI R
CIV P 37(a)(3)(B)(iii) (iv) and that {t]he court may on motion order sanctions for such Rule
33 and Rule 34 violations V I R CIV P 37(d)(1)(A)(ii) Rule 37 further provides that {a} failure
described in Rule 37(d)(l)(A) is not excused 0n the ground that the discovery sought was
objectionable unless the party failing to act has a pending motion fox a protective order under Rule
26(0) V I R CIV P 37(d)(2) Under Rule 37 [s]ancti0ns may include any of the orders listed
in Rule 37(b)(2)(A)(i) (vi) 6 and [ilnstead 0f or in addition to these sanctions the court must
require the party failing to act the attorney advising that party or both to pay the reasonable
expenses including attorneys fees caused by the failure unless the failure was substantially
justified or other circumstances make an award of expenses unjust V I R CIV P 37(d)(3)
‘11 12 Here Defendant violated Rule 33 and Rule 34 when he failed to timely respond to
Plaintiff s first set of interrogatories and Plaintiff s first request for production of documents
There is no pending motion for a protective order under Rule 26(0) so Defendant 3 failure is not
excused Defendant did not argue since Defendant did not file an opposition and the Court does
not find that the failure was substantially justified or other circumstances make an award of
expenses unjust See Dans 59 VI at 236 ( Substantial justification for failing to disclose i9
6 See supra footnote 4
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satisfied if there exists a genuine dispute concerning compliance ) 7 Thus at this juncture the
Court will grant Plaintiff s motion as to Defendant 9 failure to respond to Plaintiff‘s first set of
interrogatories and Plaintiff s first request for ptoduction of documents order Defendant to serve
he1 responses to Plaintiff s first set of interrogatories and Plaintiff s first request for production of
documents and order Defendant Defendant s counsel or both to pay the reasonable expenses
including attorney 9 fees caused by the failure See Pedro 70 V I at 294 (quoting Dam 59 V I
at 236 (2013) (The imposition of sanctions for abuse of discovery {procedures} under [V I R
CIV P ] 37 is a matter within the discretion of the trial court )) see also V I R CIV P
37(a)(5)(A) ( If the motion is granted or if the disclosure or requested discovery is provided
after the motion was filed the court must after giving an opportunity to be heard require the
party or deponent whose conduct necessitated the motion the party or attorney advising that
conduct or both to pay the movant 5. reasonable expenses incurred in making the motion including
attorney 3 fees ) In support of its order of payment of reasonable expenses the Court finds that
(i) Plaintiff flied the motion after attempting in good faith to obtain the disclosure or discovery
without court action (ii) Defendant s nondisclosure response or objection was not substantially
justified and (iii) no other circumstances make an award of expenses unjust See V I R CIV P
37(a)(5)(A)
1 The Dans wart provided the LlaritiLation for substantial justification while discussing Rule 37 sanctions for Rule
26 violations Nexertheiess the phrase substantially justified is used throughout Rule 37 and the Court finds no
reason to attribute a different standard or meaning to the same phrase within the same rule and thereby the Court also
finds the Llarification tor substantialjustification set forth in Dans applicable for Rule 37 sanctions for Rule 33 and
Rule 34 Violations
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3 Plaintiff’s Motion as to Defendant’s Failure to Respond to Requests for
Admissions
‘11 13 Rule 36 of Vi1 gin Islands Rules of Civil Procedure (hereinafter Ru1e 36 ) permits a party
to serve on any other party written tequests for admissions V I R ClV P 36(3) and [a] matter
is admitted unless within 30 days after being served the party to whom the request is directed
serves on the requesting party a written answer or objection addressed to the matter and signed by
the party 01 its attorney VI R CW P 36(a)(3) A matter admitted under this [Rule 36] is
conclusively established unless the count on motion permits the admission to be withdrawn or
amended V I R CIV P 36(b) Howexer [a]n admission underthis rule is not an admission for
any othet pulpose and cannot be used against the party in any other proceeding Id Furthermore
[w]hile Rule 36 allows a party to request an admission of the application of law to fact requests
for purely legal conclusions ate not permitted under Rule 36 because it c0u1d lead to parties
stipulating to the lav» 8 Watson v Gm 10f the Vlrgmlslarzds 2017 VI LEXIS 43 J‘10 12(Super
Ct March7 2017) see Matthew v Herman 56 VI 674 682 (VI 2012)( parties eannotstipulate
to the law especially in a situation where the decision may impact other pending or future
cases )‘ see also Der Weer 1 Hess 011 VI Corp 64 V I 107 2016 V I LEXIS 21 *54( the
patties cannot stipulate to the law not explicitly by agreeing on the applicable law or implicit1y
by not questioning what law applies ) (internal quotation marks and citations omitted) Rule 37
governs Rule 36 violations where a party fails to admit what is requested under Rule 36 and if
the requesting party later proves a document to be genuine or the matter true V I R CIV P
37(C)(2)
3 The Watson court was addressing Rule 36 01 Federal Rules 01 Civil Freeware (hereinafter Federal Rule 36 ) Rule
36 was modeled after Federal Rule 36 Thus the Court finds the diseussion in Watson app1ieable in this instance
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‘I[ 14 Here based on the record Plaintiff c,erved Defendant with inter alia Plaintiff s first
requests for admissions on October 30 2020 and to date Defendant has not served her responses
thereto While Plaintiff’s motion did not specifically move to deem facts admitted 9 it is not
necessary to do so Under Rule 36(a)(3) matters contained in Plaintiff 5 requests for admissions
piovided that the requests fall within the scope of Rule 36(a)(l) were automatically deemed
admitted since more than thirty days have passed after Defendant was served and Defendant has
not responded with written answers or objections V I R CIV P 36(a)(3) ( A matter is admitted
unless within 30 days after being served the party to whom the request is directed selves on the
requesting party a written answel or objection addressed to the matter and Signed by the party or
its attorney ) As such the Court must review the requests for admissions and make a finding as
10 which requests fall within the scope of Rule 36(a)(1) See Watson 2017 V I LEXIS 43 at *12
( Thus when the Court granted Plaintiffs motions to deem facts admitted against Defendant
Governor and Defendant GVI the Court should have specified in its orders entered on July 9
2013 and August 12 2013 that only those requests that fall within the scope of Rule 36(a)(1) are
deemed admitted and made a finding as to which requests fall within the scope of Rule 36(a)( l) )
However Plaintiff did not include a copy of Plaintiff s first requests for admissions with this
motion Thus at this juncture the Court will grant Plaintiff s motion as to Defendant 5 failure to
respond to Plaintiff s first requests for admissions order Plaintiff to file a copy of Plaintiff’s first
requests for admissions reserve ruling on which requests fall within the scope of Rule 36(a)(1)
and order Defendant Defendant s counsel or both to pay the reasonable expenses including
attorney 3 fees caused by the failure See Pedro 70 V I at 294 (quoting Dams 59 V I at 236
9 In his motion Plaintiff mmed for an order from this Court compelling Defendant to tender her outstanding
discovery responses (Motion p 5)
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(2013) (The imposition of sanctions for abuse of discovery [procedures] under [V I R Clv P ]
37 is a matter within the discretion of the trial court )) see also V I R CW P 37(a)(5)(A) ( If
the motion is granted or if the disclosure or requested discovery is provided after the motion was
filed the court must after giving an opportunity to be heard require the party or deponent whose
conduct necessitated the motion the party or attorney advising that conduct or both to pay the
movants reasonable expenses“ incurred in making the motion including attorneys fees ) In
support of its ordet of payment of reasonable expenses the Court finds that (i) Plaintiff filed the
motion after attempting in good faith to obtain the disclosure or discovery without court action
(ii) Defendant s nondisctosure response or objection was not substantially justified and (iii) no
other circumstances make an award of expenses unjust See V I R CW P 37(a)(5)(A)
4 Plaintiff’s Motion as to Defendant’s Failure to Comply with the Scheduling Order
(ll 15 Rule 37 provides that [i]f a party or a party 5 officer director 01 managing agent or a
witness designated under Rule 30(b)(6) or 31(a)(4) fails to obey an order to provide or permit
discovery including an order under Rule 26(f) 35 or 37(a) the court where the action is pending
may issue further just orders including sanctions listed in Rule 37(b)(2)(A)(i) (vii) m and
[i3nstead of or in addition to the OFdCI‘Q above the court must order the disobedient party the
m Rule 37(b)(2)(A)(i) (\i) provides
(i) directing that the matters embraced in the order or other designated facts ht. taken as established for
purposes of the action as the prev ailing party claims
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses or from
introdudnt.y designated matters in evidenee
(iii) striking pleadings in whole or in part
(it) stayina further proceedings until the order is obeyed
(v) dismissing the action or proceeding in whole or in part
(vi) rendering a default judgment against the disobedient party or
(vii) treating as contempt of court the tailure to obey an) order except an order to submit to a physical or
mental examination
V1 R CIV P ?7(b)(2)(A)(i) (Vii)
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attomey advising that party or both to pay the reasonable expenses including attorneys fees
caused by the failure unless the failure was substantially jugtified or Other circumstances make an
award of expenses unjust pursuant to V I R CIV P 37(b)(2)(C)
‘11 16 Here Defendant violated the Scheduling Order when Defendant failed to provide the initial
disclosures failed to respond to Plaintiff‘s discovery requests and failed to propound written
digcovery befone the expiration of the deadlines set forth in the Scheduling Order Defendant did
not argue since Defendant did not file an oppogition and the Court does not find that the
failuxe was substantially justified or other circumstances, make an award of expenses unjust See
Dams 59 V I at 236 ( Substantial justification for failing to disclose is satisfied if there exists a
genuine dispute concerning compliance ) ” Thus at this junctune the Court will grant Plaintiff s
motion as to Defendant 5 failure to comply with the Scheduling OIdCI order that Defendant is
prohibited unless Defendant obtains leave from the Court from propounding written
interrogatories requests for production of documents and requests for admissions in this mattel
since the deadline set forth in the Scheduling Order expired on December 16 2020 and ordex
Defendant Defendant s counsel or both to pay the reasonable expenses including attorney 5 fees
caused by the faiIure See Pedro 70 VI at 294 (quoting Dan: 59 VI at 236 (2013) (The
imposition of sanctions for abuse of discovery [procedures] under [V I R CIV P ] 37 is a matter
within the discretion of the trial court )) see also V I R CIV P 37(a)(5)(A) ( If the motion is
granted or if the disclosure or requested discovery is provided after the motion was filed the
court must after giving an opportunity to be heard require the party or deponent whose conduct
necessitated the motion the party or attorney advising that conduct or both to pay the movant s
" See supra footnote 6 The mutt similarly finds the LlarifiLation tor substantiaI justification set 10th In Dans
applieable tor Rule 37 sanctions tor violations oi the Scheduling Order
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reasonable expenses incurred in making the motion including attorney 5 fees ) In support of its
order of payment of teas‘onable expenses the Court finds that (1) Plaintiff filed the motion after
attempting in good faith to obtain the disclosure or discovery without court action (ii) Defendant s
nondisclosure response or objection was not substantially justified and (iii) no other
circumstances make an award of expenses unjust See V I R CIV P 37(a)(5)(A)
‘11 I7 Defendant is reminded to comply with the Scheduling Order going forward and failu1e to
comply may result in further sanctions V I R CIV P 37(b)(2)(A)(vii) ( treating as contempt of
court the failure to obey any order except an order to submit to a physical or mental examination )
see also Title 14 V I C § 581 ( Every court of the Virgin Islands shall have the power to punish
by fine or imprisonment at its disenetion such contempt of its authority and none other as
(3) disobedience or resistance to its lawful writ process order rule decree or command )
CONCLUSION
(11 18 Based on the foregoing the Court will (i) grant Plaintiff’s motion in its entirety as to
Defendant 5 failure to disclose Defendant 5 failure to respond to interrogatories Defendant 5
failure to respond to requests for production Defendant 5 failure to respond to requests for
admissions and Defendant 5 failure to comply with the Scheduling Order (ii) order Defendant to
serve Plaintiff with a copy of her initial disclosures (iii) order Defendant to serve Plaintiff with a
copy of her responses to Plaintiff‘s first set of interrogatories and Plaintiff s first request for
production of documents (iv) order that Defendant is prohibited unless Defendant obtains leave
from the Court from propounding written interrogatories requests for production of documents
and requests for admissions in this matter (v) order a hearing scheduled to give Defendant and
Defendant s counsel the opportunity to be heard with regard to the Court 5 sanctions to wit the
payment of reasonable expenses including attorney 5 fees (vi) order Plaintiff to file a notice
Beikelen Betkelm
9X 2020 CV 12]
Memorandum Opinion 2021 VI SUPER '22P
Page 16 of i6
advising the Couxt 0f the reasonable expenses Plaintiff incurred as the result of Defendant 5 failure
to disclose Defendant s failure to respond to interrogatories Defendant 9 failure to respond to
requests for production Defendant % failure to respond to requests for admissions and Defendant 8
failure to comply with the Scheduling Order with supporting documentk; if any and (vii) order
Plaintiff to file a copy of Plaintiff s first requests for admissions and ieserve ruling on which
requests fall within the scope of Rule 36(a)(1) An order consistent with this Memorandum
Opinion will be entered contemporaneously helewith
DONE this 9‘1 day of February 2021
fifizfi/ZZ 1 ZM
HAROLD W L WILLOCKS
Presiding Judge of the Superior Court
SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
RAYMOND BERKELEY
PLAINTIFF, Civil No SX 2020 CV 121
V ACTION FOR ACCOUNTING
SPECIFIC PERFORMANCE
MICHELE BERKELEY INDIVIDUALLY AM) BREACH OF FIDUCIARY DUTY
AS TRLSTEE OF THE TRUST AGREEMENT CONVERSION BAD FAITH and
0F BARBARA T BERKELEY DECLARATION JUDGMENT
DEFFNDAVT CITE AS 2021VISUPER ‘22P
Appearances
Andrew L Capdeville, Esq
Law Offices of Andrew L Capdeville P C
St Thomas U S Virgin Islands
Fm Plamttfis
Yohana M Manning, Esq
McChain Hamm & St Jean LLP
St Croix US Virgin Islands
For Defendant
ORDER
WILLOCKS Presiding Judge
In accordance with the Memorandum Opinion entered contemporaneously herewith it is
hereby
ORDERED ADJUDGED AND DECREED that Plaintiff Raymond Berkeley 9
(hereinafter Plaintiff ) motion to compel Defendant Michele Berkeley individually and as
Trustee of The Trust Agreement of Barbara T Berkeley (hereinafter Defendant ) to respond to
Plaintiff s discovery requests and abide by the scheduling order filed on January 5 2021 is
GRANTFD in its entirety as to Defendant 5 failure to disclose Defendant 5 failure to respond to
interrogatories Defendant 5 failure to respond to requests for production Defendant 3 failure to
Berkeley v Berkeley
8X 2020 CV 121
Order 2021 v1 SUPER 2}?
Page 2 of 3
respond to requests for admissions, and Defendant’s fallure to comply with the Scheduling Order
It is further
ORDERED that, within seven (7) days from the date of entry of this Order, Defendant
shall serve Plaintiff with a copy of her initial disclosures It is further
ORDERED that, within seven (7) days from the date of entry of this Order, Defendant
shall serve Plaintiff w1th a copy of her responses to Plaintiff’s first set of interrogatories and
Plaintiff‘s first request for production of documents It is further
ORDERED that Defendant is prohibited unless Defendant obtains 1eave from the Court,
from propounding written interrogatories, requests for production of documents, and requests for
admissions in this matter It is further
ORDERED that Defendant and Defendant’s counsel appear a hearing via Zoom on
EQ‘t\\ Egg» , 2021 at (23d? m/pm to be
heard with regard to the Court’s sanctions to wit, the payment of reasonable expenses, including
attomey’s fees It is further
ORDERED that within fifteen (15) days from the date of entry of this Order, Plaintiff
shall file a notice advising the Court of the reasonable expenses Plaintiff incurred as the result of
Defendant’s failure to disclose, Defendant 3 failure to respond to interrogatories, Defendant’s
failure to respond to requests for production, Defendant’s failure to respond to requests for
admissions, and Defendant’s failure to comply with the Scheduling Order, with supporting
documents, if any And it is further
ORDERED that within fifteen (15) days from the date of entry of this Order, Plaintiff
shall file a copy of Plaintiff’s first requests for admissions The Court will reserve ruling on which
requests fall within the scope of Rule 36(a)(l) pending receipt of Plaintiff’s submission
Belkelex 1 Berkelex
9X 2020 CV 12!
Order 2021 VI SUPER 2;}?
Page 1 of 3 M
DONE and so ORDERED this 911 day of February 2021
HAROLD W L WILLOCKS
Presiding Judge of the Superior Court